COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60032 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION : MICHAEL PATTON : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-247399 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DEBORAH NAIMAN, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: BRIAN M. FALLON 450 Standard Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant-appellant Michael Patton timely appeals from his conviction and sentence of eight to twenty-five years imprisonment for aggravated robbery in violation of R.C. 2911.01(A)(1). Defendant admitted during his jury trial to the theft of a 1989 white four door Dodge Dynasty from Avis Rent-A- Car at Cleveland Hopkins Airport ("Avis") on the morning of November 17, 1989, but denied any attempt to drive the car into the security guard near the exit gate while fleeing from the parking lot in the stolen car. Richard McGraw, a retired Cleveland policeman and unlicensed security guard retained by Avis, testified at trial that he was posted at the guard hut near the exit gate of the parking lot that morning. McGraw stated that his duties included checking the papers of drivers leaving the parking lot in rental vehicles to ensure that they were authorized to use the vehicle they were driving and to deter theft. McGraw became aware a theft was in progress based upon a telephone call from Helen Walton, a rental agent in the Avis office. McGraw removed his unregistered former police service revolver from the unlocked trunk of his nearby car rather than attempting to park his car in front of the exit gate to impede defendant's escape. McGraw testified defendant drove the stolen car toward him as he stood in front of the gate and tried to stop defendant from leaving the area. McGraw stated he pointed the - 3 - weapon in the air while standing in the road in front of the exit gate and not at defendant. McGraw testified that his left hand was struck by the stolen car as he attempted to jump out of the way of the car as it approached at approximately 10 to 25 miles per hour. McGraw's weapon discharged and defendant was struck in the head by some object after the rear window of the car had been destroyed. McGraw retrieved his personal car and pursued defendant after the stolen car had smashed through the wooden gate blocking the parking lot exit. McGraw was unable to find defendant or the stolen car and subsequently went to Fairview Hospital seeking treatment for his left hand or wrist. Avis rental agent Helen Walton testified she saw defendant approach the Avis rental office that morning by walking through the exit gate and became alerted since it was unusual for persons to enter in that manner. According to Walton defendant stopped at a pay telephone outside the rental office and gave the impression of placing a call, but appeared to be looking at cars in the Avis lot. Walton stated she subsequently called McGraw at the guard hut near the parking lot exit gate to alert him defendant was attempting to steal an automobile. Walton stated she watched defendant drive the stolen car toward McGraw at the exit gate and saw McGraw "move as if he was hit or something." - 4 - Defendant's cousin, Nicole Nunmaker, and mother, Carol Kirasik, testified concerning defendant's efforts to obtain medical care for the cut on defendant's head that morning. Although defendant requested he be driven to various distant hospitals for treatment, Nunmaker drove defendant to Marymount Hospital due to his deteriorating condition. Nunmaker was suspicious of defendant's explanation for the source of his injury and eventually called Avis and informed the police on the scene that she had taken defendant to Marymount for treatment. Cleveland police officer Karen Espy testified she and her partner responded to the telephone call for assistance by Avis employee Michael Hover that morning. Hover stated during the telephone call the incident involved an "off-duty" policeman. Officer Espy interviewed various witnesses while at the scene and subsequently responded to Nunmaker's call from Marymount Hospital to arrest defendant. Various other police officers and detectives testified to finding the stolen car still running and abandoned with a flat tire at West 150th Street and Puritas Avenue. Blood samples taken from the interior of the automobile and defendant's clothes were both Type A. The detectives were unable to find defendant's fingerprints in the automobile or on the pay telephone outside the Avis office. Defendant testified on his own behalf and admitted to stealing the automobile but denied any intent to injure the - 5 - security guard while fleeing the Avis parking lot with the car. Defendant's theory was that he was merely guilty of grand theft of the automobile rather than aggravated robbery. Defendant argued McGraw fabricated the altercation with defendant to shift blame to defendant to cover up McGraw's own wrongdoing after unlawfully discharging his unregistered weapon. The trial court submitted the case to the jury after declining to give proposed instructions requested by both the prosecution and defense. Defendant requested the following instructions, viz.: (1) security guards' powers of arrest and (2) licensing requirements, and (3) defendant's justifiable self- defense to (4) McGraw's alleged felonious assault by threatening defendant with the handgun. The trial court denied defendant's motion for judgment of acquittal after the jury found defendant guilty of aggravated robbery. Defendant timely appeals from his conviction for aggravated robbery raising four assignments of error. Defendant's first assignment of error argues he was improperly charged and convicted of aggravated robbery based upon insufficient evidence as follows: OHIO REVISED CODE SECTION 2911.01(A)(1) DOES NOT PROVIDE THAT THE ELEMENT OF A "DEADLY WEAPON" MAY ALSO BE THE SAME OBJECT OF THE UNDERLYING THEFT OFFENSE. Defendant's first assignment of error lacks merit. Defendant contends that stealing an automobile is specifically classified as grand theft under R.C. 2913.02(B) and - 6 - that the stolen vehicle may not constitute the "deadly weapon" used to commit the aggravated robbery of the vehicle. Defendant argues the charge of aggravated robbery improperly encompasses and is more severe than two distinct offenses of which he was not charged, viz., grand theft of the automobile and assault committed while escaping with the stolen vehicle. Defendant's argument ignores the fundamental distinction between aggravated robbery and various other theft offenses which do not involve the possession of deadly weapons or dangerous ordnance or inflicting or attempting to inflict serious physical harm accompanying the theft offense. Defendant was indicted for aggravated robbery in the case sub judice pursuant to R.C. 2911.01(A)(1) which provides in pertinent part as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (Emphasis added.) Defendant admitted to stealing the automobile which constitutes a theft offense as defined by R.C. 2913.01. Possessing a deadly weapon while fleeing from a security guard to avoid apprehension for theft constitutes aggravated robbery. State v. Ervin (June 11, 1987), Cuyahoga App. No. 52357, unreported. R.C. 2923.11 (A) defines "deadly weapon" as follows: - 7 - *** any instrument, device, or thing capable of inflicting death, and designed or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon. (Emphasis added). An automobile may constitute a "deadly weapon" under R.C. 2923.11(A) since it is capable of inflicting death if the prosecution demonstrates the vehicle was used by defendant as a weapon by operating the vehicle in a manner to inflict or in an attempt to inflict death or serious physical injury to others. See, State v. Roberson (Sep. 20, 1984), Cuyahoga App. No. 48019, unreported at 2; State v. Grimsley (1982), 3 Ohio App. 3d 265, n. 5. The state presented evidence defendant committed more than the mere grand theft of the automobile under R.C. 2913.02(B) based upon the accompanying attempt to injure McGraw with the stolen car while fleeing the parking lot. Defendant apparently argues the evidence was insufficient to demonstrate aggravated robbery under R.C. 2911.01(A)(1). The standard for determining the sufficiency of the evidence is a question of law and is determined after viewing the evidence and reasonable inferences drawn therefrom in the light most favorable to the prosecution to determine whether any rational trier of fact could have found all essential elements of the offense charged beyond a reasonable doubt. Although State v. Merriweather (1980), 64 Ohio St. 2d 57, holds that aggravated robbery under R.C. 2911.01(A)(1) does not include the "use or threatened use of force" element of robbery under 2911.02, we - 8 - hold defendant's "use" or method of operating a vehicle he is attempting to steal may properly give rise to an inference that the vehicle constitutes a "deadly weapon" in a prosecution for aggravated robbery under R.C. 2911.01(A)(1). We specifically reject defendant's contention the object stolen cannot also constitute the "dangerous weapon" used to complete the aggravated robbery since defendant has cited no authority or logical reason to support his argument to the contrary. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error challenges the denial of his proposed jury instructions as follows: THE TRIAL COURT ERRED WHEN IT REFUSED TO GIVE THE JURY INSTRUCTIONS REQUESTED BY THE DEFENDANT. Defendant's second assignment of error lacks merit. Defendant contends the trial court's failure to give his proposed jury instructions relating to alleged criminal violations by the security guard, for e.g, McGraw's failure to obtain security guard license or register the handgun and alleged felonious assault, deprived the jury of information concerning the security guard's motivation to fabricate his testimony although these theories were presented to the jury in closing argument by defense counsel. Defendant also claims the trial court improperly denied his requested instruction concerning defendant's justifiable self-defense to the security guard's - 9 - alleged felonious assault since any use of the stolen automobile as a weapon was done for his own safety in response to the security guard's threat to shoot while standing in front of the exit gate. Defendant's citation to State v. Ferguson (1986), 30 Ohio App. 3d 171, which involved the failure to give proposed instructions concerning an accomplice's testimony, provides no support for defendant's argument. The security guard in the case sub judice was not an accomplice to defendant's crime. Moreover, unlike Ferguson, defendant was permitted to explore at great length and argue to the jury McGraw's motivation to distort his testimony based upon McGraw's purportedly unlawful efforts of brandishing the unregistered handgun to deter the theft. Finally, unlike Ferguson, defendant did not request any instruction concerning McGraw's motive to lie to shift blame to defendant. The trial court properly declined to instruct the jury concerning the collateral issues of McGraw's alleged criminal conduct for felonious assault and failing to obtain a security guard license or properly registering the handgun. Defendant's argument that he used the stolen vehicle as a weapon in self-defense to McGraw's unlawful threat to shoot is preposterous. The trial court's refusal to give the proposed self-defense instruction was likewise proper since defendant failed to produce any authority to support his contention the defense of self-defense can be invoked by an admitted thief's - 10 - attempts to use deadly force against an armed security guard in an effort to escape apprehension with the stolen articles. Moreover, defendant failed to present any evidence to demonstrate he justifiably acted in self-defense to warrant giving the instruction. State v. Jackson (1986), 22 Ohio St. 3d 281, 284; State v. Hardley (Sep. 19, 1991), Cuyahoga App. No 59061, unreported. Defendant created the situation giving rise to the affray by stealing the vehicle and testified he made no effort to retreat or avoid the danger. Id. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: COMMENTS MADE BY THE PROSECUTING ATTORNEY DURING CLOSING ARGUMENTS CONSTITUTE REVERSIBLE ERROR. Defendant's third assignment of error lacks merit. Defendant argues the prosecutor improperly stated during closing argument that defense counsel attempted to confuse the jury and that the security guard's conduct was "a case for another courtroom." However, the record demonstrates defendant failed to object to these statements at trial as required by Crim. R. 51. See, State v. Hardley, supra (jury instructions). Defendant does not argue, and we do not find, that any of these statements amount to plain error under Crim. R. 52(B). See, Id. Finally, defendant claims the prosecutor tried to place the burden of proof on defendant. However, the record demonstrates - 11 - the prosecutor merely commented on the failure of the defense to offer evidence and the trial court informed the jury upon defendant's objection that defendant has no burden of proof. State v. Ferguson (1983), 5 Ohio St. 3d 160, 163 (jury presumed to follow curative instructions). A prosecutor is entitled to certain latitude in closing arguments, and a conviction will not be reversed based upon allegedly improper closing arguments unless the arguments deprived defendant of a fair trial and the jury would have found defendant not guilty absent the misconduct. State v. Vrona (1988), 47 Ohio App. 3d 145. Based upon our review of the record we are convinced defendant received a fair trial and was properly convicted of aggravated robbery. Accordingly, defendant's third assignment of error is overruled. Defendant's fourth assignment of error follows: THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant's fourth assignment of error lacks merit. Defendant argues the evidence presented by the state was against the manifest weight of the evidence and could not sustain his conviction because the testimony of McGraw and Walton was not credible and conflicted with defendant's testimony that he did not attempt to injure McGraw while fleeing in the stolen car. The standard for reviewing claims the verdict is against the manifest weight of the evidence is well settled and will not be - 12 - repeated at length. State v. Mattison (1985), 23 Ohio App. 3d 10; State v. Hardley (Sep. 20, 1991), Cuyahoga App. No. 59061, unreported. The Hardley court stated this standard as follows: *** The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See, Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Id. at 11-12. Based upon our review of all the evidence in the record sub judice together with all the reasonable inferences drawn therefrom, considering the testimony and credibility of defendant, McGraw, Watson and the other witnesses, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. Id. The central dispute on appeal, as in the trial court, concerns the circumstances under which defendant drove the stolen vehicle away from the Avis parking lot. Defendant testified he did not drive toward or attempt to injure McGraw with the vehicle and that McGraw lunged at the vehicle in frustration to prevent the theft. McGraw and Walton conversely testified that defendant drove toward or struck McGraw while speeding away. Although defendant argued McGraw had a motive to lie and Watson had a limited opportunity to observe the events, the credibility of defendant's denial was undermined by the testimony of his - 13 - mother and cousin who stated defendant lied to them concerning the circumstances of his head injury. It is well within the province of the jury to choose to believe the testimony offered by the state and reject that of defendant. The jury could properly find defendant had a deadly weapon on or about his person or under his control when committing a theft offense or in fleeing immediately after such offense in violation of R.C. 2911.01(A)(1). The state presented reliable credible evidence of defendant's guilt of aggravated robbery and this Court declines to find the jury clearly lost its way and created a manifest miscarriage of justice in resolving the conflicts in the evidence. Accordingly, defendant's fourth assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and BLACKMON, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .